Ashok Kumar vs Surinder Kumar - 2023 Supreme(P&H) 3043

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(P&H) 3043

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
NAMIT KUMAR, J.
Ashok Kumar – Petitioner
Versus
Surinder Kumar – Respondent
CRR NO. 360 of 2021 (O&M)
Decided On : 20-02-2023

Advocates Appeared:
Mr. Baljinder Singh Singhvi, Advocate; For the Petitioner
Mr. Vinok Kumar Sharma, Advocate; For the Respondent

Headnote:(A) Negotiable Instruments Act, 1881 - Section 138 - Limitation Act, 1963 - Section 5 - Condonation of delay - Petitioner sought condonation of delay of 1802 days for filing a revision petition which was allowed as the parties compromised - Original conviction and sentence under Section 138 were challenged and ultimately set aside due to compromise between parties. (Paras 1-20)

(B) Compounding of Offences - Court has allowed compounding of the offence under Section 138 as parties reached a full and final settlement, affirming that no useful purpose would be served by continuing the litigation when the complainant does not oppose the settlement. (Paras 10, 20)

Facts of the case:
The petitioner was convicted in a case under Section 138 for dishonoring a cheque issued for a loan taken by him. The parties reached a compromise during the appeal process.

Findings of Court:
The Court found the compromise satisfactory to quash both the conviction and sentence, asserting that the petitioner should not be penalized further since he had already served time for the sentence and paid the fine.

Issues: The primary issue was whether the compromise between the parties could lead to the quashing of the conviction under Section 138.

Ratio Decidendi: The court reasoned that maintaining the conviction under Section 138 would not serve any purpose given that the parties had mutually agreed to settle and the complainant had no objection to the petitioner's acquittal.

Result: The petition was allowed, and the petitioner was acquitted of the charges.

Table of Content
1. conviction under section 138 and its basis. (Para 4 , 5 , 6)
2. compromise between parties regarding debt. (Para 8 , 9 , 17)
3. court's discretion to quash conviction post-compromise. (Para 10 , 11 , 12 , 15)
4. litigation unnecessary due to settlement. (Para 18 , 19 , 20)

JUDGMENT

Mr. Namit Kumar, J.

CRM-9599 of 2021

This application has been filed by the applicant-petitioner under Section 5 of the LIMITATION ACT read with Section 482 Cr.P.C. for condonation of delay of 1802 days in filing the revision petition.

2. Pursuant to the notice in the application, learned counsel for the non-applicant-respondent has filed reply by way of CRM-5282 of 2023, which is taken on record. According to the reply, parties have compromised the matter and the respondent has no objection, if the delay of 1802 days in filing the revision petition is condoned.

3. In view of the above, application is allowed. Delay of 1802 days in filing the revision petition is condoned.

CRR-360 of 2021 (O&M)

4. Petitioner has filed the instant revision petition under Section 401 Cr.P.C. assailing judgment and order dated 06.06.2015 passed by learned Chief Judicial Magistrate, Sri Muktsar Sahib, whereby he has been convicted and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.3,000/- under section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act') and in default of payment of fine to further undergo rigorous imprisonment for one month and also the judgment dated 27.01.2016 passed by the Additional Sessions Judge, Sri Muktsar Sahib, whereby appeal of the petitioner against the aforesaid judgment of conviction and order of sentence dated 06.06.2015 has been dismissed.

5. Brief facts of the case are that respondent-complainant Surinder Kumar filed a complaint under Section 138 of the Act against petitioner-Ashok Kumar on the ground that on 16.12.2012 petitioner took cash loan of Rs. 1,80,000/- from him and executed one pro-note and receipt dated 16.12.2012 in his favour after receiving Rs. 1,80,000/- in the presence of marginal witnesses. It is averred that petitioner also agreed to pay interest at the rate of 1.5% per month and promised to repay the loan amount along-with interest on his demand. In order to discharge his legal liability, petitioner issued one cheque bearing no. 502601 dated 29.04.2013 amounting to Rs. 1,80,000/- drawn at Bank of Baroda, Sri Muktsar Sahib out of his account No.35340100000494 in his favour as part payment of cash loan and promised him that cheque will be honoured on its presentation to the bank. When the said cheque was presented in his banker i.e. Punjab & Sind Bank for encashment, it was forwarded to the Bank of Baroda, Sri Muktsar Sahib through clearing house and it was dishonoured with remarks 'Funds Insufficient" vide memo dated 14.05.2013. Thereafter the respondent issued a legal notice to the accused on 04.06.2013 through his counsel but in spite of service of notice, petitioner did not make payment to him. On the basis of the preliminary evidence adduced by the respondent-complainant, petitioner was ordered to be summoned vide order dated 12.12.2013 for the commission of an offence punishable under Section 138 of the Act. Petitioner appeared and was granted bail. Finding a prima-facie case, notice of accusation for the commission of offence punishable under Section 138 of the Act was served upon the petitioner to which he pleaded not guilty and claimed trial. After hearing learned counsel for the parties and on appreciation of evidence on record, petitioner was convicted and sentenced as above by the trial Court vide judgment of conviction and order of sentence dated 06.06.2015.

6. The aforesaid judgment and order dated 06.06.2015 were challenged by the petitioner in appeal before the learned Additional Sessions Judge, Sri Muktsar Sahib, which was dismissed vide judgment dated 27.01.2016.

7. Feeling aggrieved, petitioner has filed the instant revis